This memorandum provides an introduction to applicable international human rights law and commentary supporting a right to free legal counsel for UASC navigating U.S. immigration proceedings. The arguments indentified in this memorandum are particularly based on the CRC, which is not binding on the United States as a consequence of its non-ratification. Nonetheless, given the CRC’s near universal ratification record, advocates can use arguments based on the CRC for its persuasive value before policymakers and judges in the United States. If and when the United States ratifies and implements the CRC, advocates will then be able to argue that its provisions are binding in the United States. That would also be the case if a determination is made that some or all of the CRC’s provisions have become customary international law.
This memorandum identifies five potential arguments which could be utilized by U.S.-based advocates to campaign for a right to free legal counsel for UASC in immigration proceedings. Three of these arguments have the potential to provide a right to free legal counsel for all UASC in the United States. The first argument is based on utilizing the bests interests of the child and non-discrimination concepts, which are pivotal to the CRC, the paramount international human rights instrument dedicated to the defense of children’s rights. This argument essentially provides that respect for the best interests of UASC requires implementation of procedural safeguards, which includes the provision of free legal counsel in immigration proceedings. The second broad argument is based on Article 20(1) of the CRC which singles out children temporarily or permanently deprived of their family environment for special protection and assistance. An argument for the provision of free legal counsel for such children navigating immigration proceedings is founded on Committee guidance. The last all encompassing argument is based on access to justice and fairness and is underpinned by provisions in the CRC as well as guidance by the Committee and UNHCR. Provisions of the CRC and Committee and UNHCR guidance also support arguments for a right to free legal counsel for two narrower categories of UASC, those detained and those seeking asylum.
Once advocates identify the most compelling and promising arguments, further research on the merits of these arguments will be undertaken. To this end, some additional avenues for research have been identified.